International Law Commission Must Proceed with Caution on ‘Succession of States’, Sixth Committee Delegates Urge, as Annual Review Concludes

GA/L/3611
6 November 2019
Seventy-fourth Session, 32nd & 33rd Meetings (AM & PM)

International Law Commission Must Proceed with Caution on ‘Succession of States’, Sixth Committee Delegates Urge, as Annual Review Concludes

Speakers Tackle Host Country Report, Say Headquarters Agreement Not Upheld, But United States Delegate Says Mission Doing Everything to Fulfil Obligation

Delegates urged the International Law Commission to proceed with caution on their work addressing “Succession of States in respect of State responsibility” due to a dearth of State practice in this area and a need for consistency with the Commission’s previous work in adjacent fields, as the Sixth Committee (Legal) concluded its consideration of Cluster III from that body’s annual report today.  (For background, see Press Release GA/L/3610.)

The representative of Italy observed that the topic might not be ready for codification, as it is characterized by a paucity of State practice.  The only realistic solutions to matters of State succession are context‑based and mutually agreed‑upon.  To this end, he noted that an exercise of progressive development might be useful for outlining the normative parameters of such solutions, so long as the Commission avoids any general, sweeping rule or principle.

Turkey’s delegate also referenced the scarcity of State practice in this area, noting that what little practice exists differs significantly even in the same category of State succession.  She also questioned the feasibility of differentiating between the political and legal aspects of this topic, given how these two facets are largely intertwined.  A cautious approach is important, she emphasized.

More is needed, said the representative of Romania, to ensure consistency between the Commission’s work on this subject and its previous work relating to State responsibility and diplomatic protection.  Noting that the concept of “injury” is not used in the draft articles pertaining to State responsibility for internationally wrongful acts — which instead use the concept of “wrongful acts” to trigger State responsibility — she cautioned against its use in the draft articles relating to succession.

Delegates also took up the Commission’s work from Cluster III on “General principles of law”, with many agreeing with the Special Rapporteur on the need for updated terminology, while also calling for clarity as to these principles’ relationship with other sources of international law.

In concert with many delegations, Egypt’s representative stated that the concept of “civilized nations” ‑ referenced in article 38(1)(c) of the Statute of the International Court of Justice ‑ is obsolete and should not be used in the future.  He pointed out that the general principles of law used by the Court in discharging its legal responsibilities apply to all nations, not just a restricted group of countries.

India’s delegate also cited that article, emphasizing that there is no hierarchy among the sources of international law that the Court applies.  General principles of law should not be considered a subsidiary or secondary source, but rather a “supplementary source” of international law.  He encouraged study of the Commission’s work in similar areas, such as the law of treaties, the fragmentation of international law and the identification of customary international law.

The representative of Chile, also discussing the relationship among various sources of international law, called for the Commission to scrutinize the degree of autonomy enjoyed by these principles as a formal source of international law, and when they might prevail over customary norms or those present in treaties.  She urged the Commission to focus initially on the aspects of this topic that enjoy the greatest consensus.

The Commission’s goal, said Poland’s delegate, should not be to catalogue or produce an illustrative list of general principles of law, however.  Rather, it should seek to explain and clarify how this source of law should be applied.  Although international organizations can contribute to the formulation of these principles, he noted he agreed with the Special Rapporteur that the existence of a general principle of law hinges on its general recognition by States.

The Sixth Committee also took up the Report of the Committee on Relations with the Host Country (document A/74/26), with speakers decrying the host country’s non‑issuance of visas to, and placement of travel restrictions on, the delegations of certain Member States in violation of the United Nations Headquarters Agreement.

Iran’s delegate pointed to the United States recent expansion of its restrictions on the Iranian Mission and the resulting effects on its basic functioning and human rights of its staff and their families.  The 25‑mile‑radius travel restriction for Iranian mission personnel has been narrowed to less than three miles and, within a few months, currently assigned diplomats will face “enforced displacement” to a new area, putting pressure on children accustomed to their schools, friends and environment.

The delegate of the Russian Federation recalled that, despite multiple meetings of the Host Country Committee and intervention by the Secretary‑General to the United States Secretary of State, “the results are nothing.”  Not one of the members of the Russian delegation has received a visa.  This unprecedented abuse has disrupted the work of both the Sixth and First Committees (Disarmament and International Security), and he called on the Secretary‑General to ensure the immediate resolution of these issues.

Responding, the representative of the United States stressed:  “We have listened, we have engaged and we have taken your concerns seriously.”  His Mission is striving to do everything it can to fulfil his country’s obligation under the Headquarters Agreement.  The United States is honoured to have the privilege of hosting the United Nations, he said, adding “we do not take our responsibilities lightly.”

Invoking a Pink Floyd song, Mauritius’ delegate implored that “it doesn’t have to be like this; all we need to do is make sure we keep talking.”  It is important for everyone to work together to ensure that New York City remains the venue par excellence for diplomatic negotiations, he said, stressing “New York City is no ordinary city.”

Also speaking today were representatives of the Philippines, United Kingdom, Sudan, Spain, Federated States of Micronesia, Viet Nam, Japan, Mexico, Slovenia, Portugal, Czech Republic, El Salvador, Estonia, Republic of Korea, Malaysia, Australia, Jamaica, Peru, Iran (speaking for the Non-Aligned Movement), Syria, Cuba, Venezuela, Democratic People’s Republic of Korea, Indonesia and Singapore, as well as a representative of the European Union.

The Sixth Committee will next meet at 10 a.m. on Monday, 11 November, to take action on draft resolutions, hear the reports of working groups and hear the introduction of further draft resolutions.

Special Rapporteur for Cluster II

MARJA LEHTO, Special Rapporteur on the topic “Protection of the environment in relation to armed conflicts”, said she would take into account all comments, delivered in the Sixth Committee or submitted directly to the International Law Commission.  Also noting that she is available for an exchange of views or providing clarifications if that is deemed useful, she announced a workshop this afternoon on the topic for interested delegates.  The workshop will include practitioners from the field as well as scholars, she added.

MELISSA ANNE TELAN (Philippines), focusing on the topic “General Principles of Law”, said that those principles are a direct source of rights and obligations.  Clarification of this source is pragmatic and of importance for her country.  The starting point for the Commission’s consideration of the topic must be the part of the Statute of the International Court of Justice which identifies “the general principles of law recognized by civilized nations” as one of the sources of international law.  She noted her agreement with the initial assumption and formulation of draft conclusion 2 that, for a general principle of law to exist, it must be generally recognized by States.  Philippine jurisprudence clarifies that the term “generally accepted principles of international law” includes “general principles of law” as the term is understood in the State of the International Court of Justice.  Philippine jurisprudence also provides that general principles of international law are principles established by a process of reasoning based on the common identity of all legal systems.  On the suggestion to develop an illustrative list of principles, she said she was concerned that this exercise may dilute the matter.  As well, she also noted she did not support addressing “regional” or “bilateral” general principles of international law at this time.

PAWEŁ RADOMSKI (Poland), commenting on “Succession of States in respect of State responsibility”, said that examples of such succession are, to a large extent, context-specific, adding that he agreed with the Special Rapporteur on the subsidiary nature of the Commission’s work and on the priority to be given to agreements between the States concerned.  Noting the scarcity of State practice, he invited the Commission to reconsider whether draft articles should be the objective of this endeavour.

Turning to “General principles of law”, he expressed hope that the Commission will explain and clarify the application of this source of law.  However, the Commission’s goal should not be to catalogue general principles of law or to produce an illustrative list in this respect.  While he observed that international organizations can contribute to the formulation of general principles of law, he agreed with the Special Rapporteur that, for such a principle to exist, it must be generally recognized by States.

EDWARD HAXTON (United Kingdom), on “Succession of States in respect of State responsibility”, said that, while keeping an open mind, he had concerns about the potential to reach agreement among States given the dearth of existing practice.  The report confirmed rather than alleviated many of these concerns, he said.  For example, the third report acknowledges that State practice in this area is diverse, context‑specific and sensitive and inconclusive.  He also noted that, according to the Special Rapporteur, the proposed draft articles would constitute progressive development on international law or new international law, which should be stated clearly at the outset of the general commentary.

Turning to “General principles of law”, he noted that, while the Commission’s work is at a very early stage, questions concerning international law could be of practical assistance to States and practitioners alike.  Among other comments, he said he agreed that the preparation of an illustrative list of general principles would be impractical, incomplete and divert attention away from the central aspects of the topic.  Commenting on the Special Rapporteur’s suggestion that future work on the topic examine general principles of law at the regional or bilateral level, he said it was not clear that such an analysis would fall within the scope of a topic on “general principles of law”.

ALIS LUNGU (Romania), addressing “Succession of States in respect of State responsibility”, said more is needed to ensure consistency between the draft articles and the Commission’s previous work related to State responsibility and diplomatic protection.  She cautioned against using the concept of “injury” in the draft articles, as it is not used in the context of the draft article on State responsibility for internationally wrongful acts, which operates with the concept of “wrongful acts” and not of “damage injury” as a trigger of State responsibility.  Acknowledging the Special Rapporteur’s flexible stance on “clean slate”, she said more clarity is needed on how such an approach would deviate from the general rule of non‑succession.

Turning to “General principles of law”, she underscored the importance of their identification, adding that recognition is essential for the existence of a general principle of law.  While noting that the general principles of law are supplementary sources of international law, she said that her delegation aimed, in the context of the analysis on this topic, to examine the relationship between general principles of law, fundamental principles of international law and principles regulating various branches of international law, as all form a system of principles of international law.

ELSADIG ALI SAYED AHMED (Sudan), on “Succession of States in respect of State responsibility”, commended the Special Rapporteur’s survey of State practice and jurisprudence.  Calling for a closer analysis of sources and cautioning against overreliance on academic literature, he added that it is important to ensure consistency in the terms used, especially with the previous works of the Commission.  Further, the Commission must consider if it is useful to replicate or not the relevant work in the 1978 Vienna Convention on Succession of States in Respect of Treaties and the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts.  Also voicing a preference for retaining the current title of the topic, he highlighted draft article 2, observing that the term “States concerned” is vague and requires further clarification.

Turning to “General principles of law”, he noted that the report addressed related previous work of the Commission and provides an initial assessment of certain basic aspects of the topic.  Agreeing with the Special Rapporteur on the need for a cautious and rigorous approach, he said the Commission is required to provide an authoritative clarification on general principles of law.  The Commission may consider making a distinction between the terms “principles” and “norms”, he said, also adding that the term “civilized nations” should not cause major difficulties — while it may have had meaning in the past, it is an anachronism and should be avoided.

ENRICO MILANO (Italy), commenting on “Succession of States in respect of State responsibility”, said that the subject is characterized by the paucity and sparsity of State practice and may not be ready for codification.  However, an exercise of progressive development may be useful in indicating to States the normative parameters for context-based, mutually agreed solutions, which are the only realistic solutions to matters of State succession.  On this, he called for the Commission to signal the distinction between those provisions representing existing general international law and those that seek to progressively develop international law.  He also expressed support for the avoidance of any general, sweeping rule or principle and called for Austria’s proposal on the full expression of the principle of unjust enrichment to be considered.

Turning to “General principles of law”, he noted the Special Rapporteur’s proposal to consider both general principles of law in foro domestico and general principles of law formed within the international legal system.  The latter notion should be further developed.  He also suggested that the Commission identify the essential features of general principles of international law, particularly the factors that distinguish them from customary international law and from the rules regulating the latter’s formation.

CARLOS JIMÉNEZ PIERNAS (Spain), commenting on “General principles of law”, said the most appropriate formula is a set of draft conclusions.  He pointed to two broad categories of general principles of law:  those derived from national legal systems, and those which have instead been formed in the international legal system.  He warned against the difficulty found in those formed in the international legal system, as opposed to the ease found on recognizing those stemming from national legal systems.  With regards to the principles derived from national systems, he noted that it will first be necessary to identify them as shared among national legal systems or common to the main legal systems of the world.  In addition, it would be necessary to make sure whether they are applicable in the international legal system.  He also noted his support for the idea of leaving the definition of what is a general principle of law for the end of the work.  Indeed, “the definition should be the result or consequence of these jobs,” he said.  As well, there was a risk of terminological confusion; a distinction must be made between general principles of law and fundamental principles of law, as these are contained in Article 2 of the Charter of the United Nations and in General Assembly resolution 2625 (XXV)(1970).

MARIANA DURNEY (Chile) said the Commission’s study of “General principles of law” will contribute to the enhanced application of these principles by States and international courts.  The subject must be approached with caution and rigor and initially focus on aspects of this topic that enjoy the greatest consensus.  Methodologically, the study of the relationship that exists between general principles of law and other sources of law should not be relegated to an annex to the third question proposed by the Special Rapporteur; rather, the Commission should study this relationship while engaging in the first question on the legal nature of general principles of law.  This would allow the Commission to scrutinize the degree of autonomy enjoyed by this formal source of international law, and when it might prevail over customary norms or those present in treaties.  Further, the Commission should focus its study on general principles of law as a formal source of international general law, she said, adding that the study’s scope should not be extended to cover principles that are bilateral or regional in nature.

JEEM LIPPWE (Federated States of Micronesia) said that “General principles of law” as a source of international law remain understudied by the Commission when compared to treaties and customary international law.  This is reflected in the inconsistencies in States’ views and international judicial bodies, as well as within the Commission on the nature, scope and application of general principles of law and their relationship to other sources of international law.  A key question to be addressed is whether general principles of law are sourced just from those principles that are common to national legal systems or also include rules to which States have given their consent at the national level.  On the Commission’s work so far, he said that he supports a draft conclusion that does not limit general principles of law to those recognized by so‑called “civilized nations”.  The language used in the Statute of the International Court of Justice in this regard is anachronistic and unnecessary.

PHAM ANH THI KIM (Viet Nam), on “Succession of States in respect of State responsibility”, pointed to the scarcity of State practice in this field.  Voicing appreciation for the methodology and approach taken by the Special Rapporteur, she said that such succession should be carried out on the basis of committed negotiations, in a free-will manner and in an appropriate time frame.  Reaffirming the subsidiary nature of the draft articles and the priority to be given to agreements between the concerned States, she said that for her delegation, the principle of “non-succession” remains the predominantly applicable principle in these kinds of situations, unless the successor agrees to share the responsibility incurred by the predecessor State.

On “General principles of law”, she commended the Commission’s work on this difficult and highly theoretical topic.  The Commission and the Special Rapporteur should thoroughly examine the direction and focus of this project.  Specifically, the role of general principles of international law, as recognized and applied in international judicial practice, should be given due regard.  Many Member States would benefit from the Commission’s guidance on this topic, she stressed.

CHINATSU TAKAGI (Japan), on “General Principles of Law”, said the topic is highly theoretical, adding she was confident the Commission will have thorough deliberations on the matter.  She also expressed her hope that the commentary will refer to State practice and authoritative views of jurists.  The output would take the form of draft conclusions, as with the topic of “Identification of customary international law” and “Peremptory norms of general international law (jus cogens)”.  Although the significance of draft conclusions, unlike a draft article of a proposed treaty, is not clear, domestic courts may still refer to them as having a normative value.  Therefore, Member States and the Commission should be aware of the future influence of draft conclusions.  In addition, the scope of the topic in draft conclusion 1 is not necessarily clear and the phrase, “as a source of international law”, particularly needs thorough examination.  She said she expects further explanations to be provided in the draft conclusions and commentary, including on the definition of “general principles of law”.

ANA FIERRO (Mexico) observed that the articles on “Succession of States in respect of State responsibility” show that wrongful acts by States in such circumstances should not go unpunished, and that it is important to have clear rules for State responsibility for harm done.  Where succession might affect the possibility of reparations for those harmed, clear rules must ensure that no one is left without legal protection.  It is crucial to seek a balance between the interests of States undergoing dynamic political change and the interests of persons harmed by illegal acts.  The Commission should take into account general rules deriving from its earlier work, such as that on State responsibility for internationally wrongful acts.

Turning to “General principles of law”, she said the Commission’s work in this area complements its analysis of international custom and its work on treaty law.  Agreeing that international practice is a good point of departure for studying this topic, she called on the Commission to also consider national practice, jurisprudence and doctrine.  Regarding an annexed illustrative list of general principles of law, she said such a list would necessarily be incomplete and not practically useful.  The Commission should focus on a thorough analysis of these principles and the manner in which they constitute a source of international law.

MINE OZGUL BILMAN (Turkey), regarding “Succession of States in respect of State responsibility”, expressed concern and doubt about the possibility of differentiating between the political and legal aspects of this topic, as they are largely intertwined.  Further, available State practice is scarce and what exists differs significantly even within the same category of State succession.  She highlighted the importance of a cautious approach and said she looked forward to following future work in this area.

On “General principles of law”, she said that the Commission’s work should take the form of conclusions accompanied by commentaries.  Acknowledging the importance of finding a common understanding on general principles of law, she said that illustrative examples of such principles could be included in the commentaries together with all relevant materials.  However, the Commission should avoid preparing a list — which would not be sufficient — and to employ a cautious and rigorous approach to this topic.

MATEJA ŠTRUMELJ PIŠKUR (Slovenia), on “Succession of States in respect of State responsibility”, said it was difficult to affirm the existence of a general rule.  She added that she also agrees that the inconclusiveness of State practice does not imply the use of the “clean slate rule”.  This view is in line with the Commission’s previous work, which rarely accepted the “clean slate rule” as predominant.

Regarding “General principles of law”, she said that the topic should, when appropriate, draw on general principles of law with cautious consideration that some principles may not be entirely applicable to the area of State succession.  The topic’s current title is appropriate, especially regarding consistency with the Commission’s previous work.  As well, the draft articles should be organized primarily by the specific category of State succession (dissolution, unification, separation, etc.), followed by addressing both rights and obligations combined in the same article.  Alternatively, if the Commission were to divide rights and obligations into different parts, each category of State succession would be subject to a separate article, she noted.

ELENA A. MELIKBEKYAN (Russian Federation), on “Succession of States in respect of State responsibility”, said a number of the conclusions are not supported by State practice.  Further, “succession” and “continuity” are different legal concepts from the standpoint of international law and should not be confused.  The work of the Commission is proceeding slowly, she observed, adding:  “Of course we are not calling on the Commission to hurry up.”  However, the draft articles proposed on this topic either get stuck in the Drafting Committee or are subjected to serious changes; that makes it difficult for work on other topics to continue.  As a result, the Committee has to make do with interim reports.  While she had no objections to draft articles 2 and 5, it is not possible to determine the fate of the drafts on the basis of these, since they basically enshrine general provisions which do not relate to the difficult aspects that need to be identified and resolved.  The Commission should come back to considering a more appropriate format; articles are more appropriate for codification of international law and “clearly we can’t talk of a convention” on the topic, she noted.  The best form for the outcome would be an analytical report describing the nature of the problems and demonstrating the practical difficulties encountered by States and how to interpret them.

Turning to “General principles of law”, she highlighted “an interesting section on the historic development of general principles of law over time”.  Welcoming the Rapporteur’s intention to continue with a cautious approach in research, she said it is difficult to consider the prospects of future work since the first report is preliminary and introductory in nature.  Highlighting the task of determining the origins of sources, she voiced support for the approach focusing on general principles relating to article 38 of the Statute of the International Court of Justice.  It is not correct to consider other international criminal justice instruments, she said, also calling on the Commission to clarify the relation between general principles of law and customary international law and international treaty law.

SERGIO AMARAL ALVES DE CARVALHO (Portugal), speaking on “Succession of States in respect of State responsibility”, commended the Special Rapporteur’s clarifications concerning the exclusion of both the automatic extinction and the automatic transfer of responsibility in cases of succession of States.  State practice in this area does not offer enough of a basis for affirming the existence of a general rule in connection with State succession.  Therefore, the draft articles should be of a subsidiary nature and priority should be given to agreements between the States concerned.  These agreements must be concluded in good faith and take into consideration the principle of sovereign equality.  In this, the draft articles can be a useful reference for the negotiation of these agreements.

Turning to “General principles of law”, he pointed to the long history of references to such principles in international instruments and judicial practice across jurisdictions as evidence of the principles’ strong relevance to international law.  Although it is important to study the relationship between various sources of international law, a hierarchy should not be established among them.  General principles of law have a supplementary role of filling gaps and avoiding rulings of non liquet, in addition to setting the ethical-normative scene for other norms.  The Commission’s three draft conclusions on this topic constitute a solid first step to revisit this source of international law and showcase the Commission’s fundamental role as an active interpreter of, and guiding body for, international law.

AHMED ABDELAZIZ ELGHARIB (Egypt) said the Commission’s work on “Succession of States in respect of State responsibility” must be consistent with existing international instruments relating to this topic, such as the Vienna Convention on Succession of States in respect of Treaties.  It should also reference the Commission’s previous work on the responsibility of States for internationally wrongful acts, he added.

Turning to “General principles of law”, he stated it is important that the Commission study this topic, as article 38(1)(c) of the Statute of the International Court of Justice directly refers to these principles; they are a source the Court can refer to in the exercise of its legal responsibilities.  General principles of law are drawn from domestic legal systems and applicable in international relations.  Several principles might fit under this heading, including that of “good faith”, which has been applied by various courts and tribunals over the years in the context of civil, trade and other relations.  He noted his agreement with paragraph 220 of the report regarding the concept of “civilized nations”; the term is obsolete and should be deleted going forward as general principles of law apply to all nations, not a restricted group.

UMASANKAR YEDLA (India), on “Succession of States in respect of State responsibility”, said the draft articles on this complex topic deal with rules that belong to two areas of international law:  the law of State responsibility and the law of succession of States.  Draft articles 12 to 14 provide for a situation where the injured predecessor State may request reparation for the internationally wrongful act of another State if the predecessor State continues to exist.  Similarly, the successor State may also request reparations for internationally wrongful acts of the responsible State in case of merging two or more States.  The Special Rapporteur needs to identify whether the drafts are intended to establish the procedural possibilities of claiming rights or substantive rights and obligations, he said.

Turning to “General principles of law”, he encouraged the study of similar works undertaken by the Commission on various topics, such as the law of treaties, responsibilities of States for internationally wrongful acts, fragmentation of international law and identification of customary international law.  For his delegation, there is no hierarchy among the sources of international law under article 38 of the Statute of the International Court of Justice.  Accordingly, the general principles of law should not be described as a subsidiary source or secondary source, he said, suggesting the term “supplementary source” to qualify the sources of general principles of law.

KRISTINA PELKIÖ (Czech Republic), “Succession of States in respect of State responsibility”, said draft article 2 contains definitions of terms which are identical with the 1978 and 1983 Vienna Conventions; no additional definitions are needed.  Among the comments regarding draft article 7, she said any wrongdoing after the date of State succession is clearly covered by the 2001 article on responsibility of States.  The article also seems to collide with the very rules of the articles on responsibility of States that govern attribution of conduct; that text should be reconsidered.  On draft article 8, there were no reasons for repeating the provisions of article 10, paragraphs 2 and 3.  Draft article 8 is also superfluous in view of proposed draft article 6.  Further precision is needed for the chapeau of draft article 8, as its formulation will impact the understanding of paragraphs 1, 2 and 3.  The proposed paragraph 2 is disappointing and should be revisited as the position of the injured State must be strengthened and guaranteed much better.

Turning to “General principles of law”, she said examples with relevant references should be included in the commentaries to the pertinent draft conclusions.  She also said she was doubtful about the possibility of addressing “regional” and “bilateral” general principles of law; the topic concerns general principles of law and should be limited to such principles.  Echoing the Commission’s stance, she said that general principles of law are supplementary sources of international law.

CARLA ESPERANZA RIVERA SÁNCHEZ (El Salvador), on “Succession of States in respect of State responsibility”, welcomed the provisional adoption of draft articles 1, 2 and 5, as well as the language concerning their subsidiary nature.  Underscoring that the drafts shall apply solely in the absence of an agreement between parties, she noted that varying agreements exist on this matter in which States may have bilaterally agreed to a set of rules on succession.  Noting the inclusion of new terminology with regard to “interested States”, she said that term could lead to ambiguous interpretation.  The word “interested” has different connotations for different States.  The current draft fails to distinguish whether it is referring to a State responsible for an internationally wrongful act or a State harmed by such a wrongful act.  Calling for a stand-alone paragraph to clarify such distinctions, she said the legal meaning of “reparation” should also be clearer.

Turning to “General principles of law”, she highlighted the legal nature of the principles.  Calling for a draft article that duly captures an agreed definition of general principles of law, she said there is a wealth of doctrine in this area.  Noting that general principles are sources of international law, she urged the international community to avoid the use of the term “civilized nations”, given this is a clumsy throwback to classic international law.  It is necessary to shift the meaning towards contemporary international law, which shores up the sovereign equality of States.  Further, while there is a distinction between general and customary international law, she emphasized that “we should not overlook the truism that the sources of international law are interlinked.”

MERJE MÄGI (Estonia), on “Succession of States in respect of State responsibility”, expressed her appreciation for the Special Rapporteur’s work in highlighting different approaches to certain issues.  Those included problems arising from cases of diplomatic protection in the situation of succession of States, she said, also agreeing with the language of the draft articles proposed in the current report.  Examples of State practice illustrate well that a rigid application of the principle of continuous nationality in cases of State succession could create “unequitable results”, she noted.  It could result in unfair treatment of private persons in getting reparations for injuries or a situation in which none of the States are entitled to seeks redress for their nationals in case of State succession.

Turning to “General principles of law”, she said that further work should be done on case law and State practice before adding an illustrative list of general principles of international law.  That would give a greater context in relation to the legal substance of the report.  Further, the distinction between general principles of law and customary international law should be more thoroughly examined, she said.  Voicing support for the approach of the Special Rapporteur on the matter of the origin of general principles of law, she also stressed that “we should not create too layered and categorized an approach in the early stage of the work.”

JU YEONG YANG (Republic of Korea), on “Succession of States in respect of State Responsibility”, said she supported draft article 2, which provides usages of terms identical to the definitions laid out in the 1978 and 1983 Vienna Conventions.  She also added her support for draft article 5, which sets forth the requirements for international legality of State succession in line with long‑established practice of the Commission on matters of State succession and the principle of ex injuria jus non oritur.  However, in regard to codifying the draft texts, she said that such an approach would inevitably make a long list of draft articles with much overlap in effort.

Turning to the topic “General principles of law”, she noted that, in draft conclusion 3, the Special Rapporteur categorizes the general principles of law into two types:  those derived from the domestic legal system and those formed within the international legal system.  However, there was no consensus among Commission members on the second category of general principles of law.  She suggested conducting a further in-depth study, since conclusion 3 is one of the most critical elements in determining the concept and content of general principles of law.

NORIZAN CHE MEH (Malaysia), commenting on “succession of States in respect of State responsibility”, said the draft articles on this topic are subsidiary in nature and, therefore, agreements between the States concerned should be given a priority.  She also supported the inclusion of draft article 13, as it clearly states the right for reparation for the unification of States as one successor State and it gives priority to the agreement entered between the States concerned before the date of succession.  However, draft article 14 (1) should be revised to include the words:  “When a State dissolves and ceases to exist and the parts of its territory form two or more successor States…”.  Draft articles 15 (1) and (2) should differentiate clearly between situations when the predecessor State continues to exist after the date of succession and when the predecessor State ceases to exist.  The Commission and the Rapporteur should have more proactive consultations with the States on this topic, considering more geographically diverse sources of State practice not only from the European sources, but from Asian and African regions for the purposes of codification and progressive development of international law relating to this topic, she emphasized.

Turning to “General principle of law”, she said that the inclusion of this topic in the Commission’s long‑term programme of work is crucial in the progressive development of international law and will carry substantive effect as one of the sources of international law.  The role that the general principles play in the two very different legal systems — national and international — differs greatly.  It would be prudent to consider the differences in political ideology, structure of States and dualist/monolist character of a State in deriving general principles of law from national legal systems.  Thus, a cautious approach must be adopted by the Commission in deliberating this topic.

Ms. GREEN (Australia), commenting on “General principles of law”, urged the Commission to focus on elucidating the meaning of those principles as a source of law reflected in article 38 (1)(c) of the Statute of the International Court of Justice.  She did not consider article 38 (1)(c) to be a subcategory of “general principles of law”, nor should the content of “general principles of law” only be determined by reference to the Court’s jurisprudence.  She said she agreed with the Special Rapporteur’s proposed two‑step process, in draft conclusion 3, for identifying general principles of law derived from national legal systems.  In addition to identifying a rule that is common between States’ legal systems, a principle of law in national legal systems must be capable of being elevated to the international legal system to be considered a source of international law.  She said she looked forward to the Commission’s consideration of when and how commonalities in domestic law can be “internationalized” to form a general principle of law among States.

MOHSEN SHARIFI (Iran), commenting on “General principles of law”, said that article 38(1)(c) of the Statute of the International Court of Justice has confined general principles of law to those legal principles crystalized from the contemplation of the legal experiences of different legal systems.  In other words, they can be understood as essential legal principles that are common to all civilized nations.  Regarding the relationship between general principles of law and other sources of law, he said that the former are an autonomous source of international law that avoid non liquet even when there is no law or existing law is unclear.  He also observed that the term “civilized nations” is inappropriate and that general principles of law represent those principles accepted by States.  To this end, he called for inclusivity in the process of identifying and recognizing these principles, in which all legal systems contribute in a balanced manner.

Turning to “Succession of States in respect of State responsibility”, he pointed to the subsidiary nature of the draft articles and said priority should be given to agreements between the States concerned.  He also called for the proposed draft articles to be compatible with the articles on the responsibility of States for internationally wrongful acts.  The draft articles regarding succession of States do not affect the specific situation in which States are created in territories under foreign occupation; these situations should have the theory of tabula rasa applied to them unless the new State decides otherwise.  In the case of protracted, illegal foreign occupation, any responsibility arising from any wrongful act by the occupying power will remain with the occupying Power — not the successor State — even after the occupation ends.  Noting that States have preferred to settle their disputes regarding succession through bilateral agreements, he said the final form of the Commission’s work on this topic could be considered guidelines for this process.

JULIAN SIMCOCK (United States), on “Succession of States in respect of State responsibility”, voiced concern about the value of the topic if it remains in draft article form, especially considering the fact that the Vienna Convention on State Succession has not found widespread acceptance.  Draft guidelines or principles may be more useful.  He called attention to draft article 9, saying that while his delegation does not yet have a position on this draft, practice in this area is uneven.  Determinations by predecessor or successor States to deny and accept liability are likely driven more by diplomatic or political considerations rather than by legal ones.  Given that, he questioned whether this is appropriate for a draft article.

Turning to “General principles of law”, he said that the focus of the Commission’s work on this should be on the concept of general principles of law and a clear methodology for how States, courts and tribunals may practically apply the concept.  Agreeing with the Special Rapporteur that an illustrative list of general principles of law would be impractical and incomplete and would divert attention from the central aspects of this topic, he stressed that any examples of general principles of law that the Commission may refer to in its work must be illustrative and contained in the commentaries.

CLAUDINE BAILEY (Jamaica), addressing “Succession of States in respect of State responsibility”, said that work related to this topic must be consistent with prior efforts.  This is particularly vital when it pertains to solutions of substantive issues to be addressed and usage of applicable terminologies — for example, terms such as “injury” and “injured State”.  In addition, there should be no automatic extinction of responsibility or automatic transfer of responsibility in cases of succession of States, which is referred to as the general rule of non‑succession.  This principle has the potential to lead to unfair and inequitable results, as States would avoid consequences of internationally wrongful acts and nationals or States which have legitimately suffered an injury would be left without a legal remedy/reparation.

Turning to “Protection of the environment in times of armed conflict”, she said such damage extends far beyond the period of conflict, the boundaries of national territories and the current generation.  Noting that the Commission had divided the draft principles into temporal phases, she recommended that it consider the content of the United Nations Environment Programme’s 2009 report on this topic which sought to identify the lacunas and deficiencies in the relevant international legal regime.  Also underscoring the intergenerational equity principle, which is the notion that each generation holds the earth in common with members of the past, present and future generations, she said this should be specifically highlighted in draft principle 21.

LUIS UGARELLI (Peru) highlighted the link between “General principles of law” and the Commission’s previous work on similar topics, noting that it was appropriate for the Special Rapporteur to focus on reports identifying customary law and peremptory norms of general international law (jus cogens).  General principles of law can arise both from national systems — through the transfer of principles therefrom into international law — and from international law itself.  Regarding the concept of “civilized nations”, he said this represents an archaic expression and does not reflect the principle of sovereign equality.  Turning to future work in this area, he called for the Commission to emphasize the identification of general principles of law.  It is not relevant to draft an indicative list of these principles, which would involve considerable efforts given the breadth of the topic.  Rather, he suggested that the Rapporteur provide illustrative examples.

Closing Remarks

PAVEL ŠTURMA (Czech Republic), Chair of the International Law Commission, expressed his gratitude to all delegations that had engaged with the substance of the report, adding that the Commission benefits greatly from their views.  In the common quest for enhanced dialogue, the Sixth Committee has had the added benefit of engaging with Special Rapporteurs and the chairs of study groups. He also highlighted the voluntary and pro bono work of the Special Rapporteurs and reminded delegates of deadlines for the submission of comments from their Governments on various topics.

He went on to say that, although he would not be responding to delegation comments at this time, the Secretariat would be preparing a summary and submitting it to the Commission.  Members of the Commission analyse delegates’ statements, which are available on PaperSmart, carefully.  Noting the Commission’s role in clarification, identification and interpretation of international law, he said that it can even enter into uncharted waters and respond to the pressing needs of the international community, as it did by including “Sea-level rise” in its programme of work.  He also expressed the hope that the draft resolution on “Crimes against humanity” being negotiated right now will make it possible to adopt a convention on that topic.

Introduction to Report of Committee on Relations with Host Country

KORNELIOS KORNELIOU (Cyprus), Chair of the Committee on Relations with the Host Country, introduced the report of the Committee (document A/74/26), noting that the report was prepared in accordance with General Assembly resolution 73/212 (2018) and follows the structure of previous years.  The Committee is an important forum in which Member States seek to resolve problems faced by the diplomatic community through a frank and constructive exchange of views.  It has proved to be an open, transparent and flexible body.  He pointed out that the Committee is unique in that it is the only body in the United Nations system mandated to consider matters in relation to the host country and then report thereon to the General Assembly.

During the reporting period, the United Nations membership raised important issues regarding the implementation of the agreement between the United Nations and the United States, he continued.  Issues concerning entry visas and travel restrictions were of particular concern.  In an effort to fully reflect the Committee’s discussions throughout the year, the report includes new language on, inter alia, the issuance of entry visas to representatives of Member States and members of the Secretariat; travel regulations issued by the host country with regard to personnel of certain missions; and the Secretary-General’s role in the Committee’s work and with respect to the implementation of the Headquarters Agreement.

Statements

ESHAGH AL HABIB (Iran), speaking for the Non-Aligned Movement, underlined the critical role of host countries of the United Nations Headquarters and United Nations Offices in preserving multilateralism and facilitating diplomacy and intergovernmental norm-making processes.  He expressed serious and grave concern about the denial or delay in the issuance of entry visas to the representatives of the Movement’s Member States by the host country of the United Nations Headquarters.  He also reiterated that political considerations must not interfere with the provision of facilities required under the Agreement.

Also expressing serious concern about the arbitrary movement restrictions imposed on the diplomatic officials of some missions of the Movement’s Member States, he said that such restrictions constitute flagrant violations of the Vienna Convention on Diplomatic Relations, the Headquarters Agreement and international law.  The Movement “seizes this opportunity to announce its resolve to present before the General Assembly a short and action-oriented draft resolution demanding the fulfilment of host country responsibilities”, he stated.

ERIC CHABOUREAU, observer for the European Union, said that the observance of privileges and immunities of diplomatic personnel is an issue of great importance, based on solid legal principles.  He underscored the need to safeguard the integrity of the relevant body of international law, particularly the Headquarters Agreement between the United Nations and the host country, the Vienna Convention on Diplomatic Relations and the Convention on the Privileges and Immunities of the United Nations.  The Host Country Committee represents an open and efficient forum for dealing with a range of diverse issues pertaining to the activities of permanent and observer missions to the Organization, he noted.

During the reporting period, he continued, the Committee held intensive discussions of several items related to implementation of the Headquarters Agreement.  Some of them were raised as a matter of urgent concern, he said, noting the emergency meeting held on 15 October to discuss the issuance of entry visas by the host country and travel restrictions on certain missions.  Taking note of the statement of the United Nations Legal Counsel at the emergency meeting, where the legal position regarding the host country’s obligations was confirmed, he said that remains unchanged from that which was provided to the Host Country Committee in 1988.  The maintenance of appropriate conditions for the delegations and missions accredited to the United Nations is in the interests of all Member States, he stressed.

ALI NASIMFAR (Iran), speaking in his national capacity, said that article 105 of the Charter of the United Nations establishes the fundamental privileges that the United Nations shall enjoy in the territory of its Members.  For a long time, however, the United States has imposed restrictions on representatives of certain Member States, as well as United Nations Secretariat staff members of certain nationalities.  It recently expanded its restrictions on the Iranian mission, affecting the basic human rights of the staff and their families and children, as well as the normal functioning of the mission.  As for the conclusions and recommendations of the Host Country Committee, he said that the affected States have not been invited to the process of negotiation.  The Committee overlooked most of the serious problems.  It is silent about the problems of the Iranian visiting diplomats, the denial of waivers to hospitals and universities and the issuance of single-entry visas, among others.  The Committee spent a full session to explore possible structural reforms but none of the suggested proposals are included in the recommendations, he added.

Pointing out that Iran’s representatives on temporary assignments are restricted to three buildings in New York, he said they cannot even go to a hospital when needed.  The previous 25-mile-radius travel restriction of Iran’s mission personnel and their families is now narrowed down to a less than three‑mile radius.  Within a few months, the currently assigned diplomats will be subjected to “enforced displacement” to a new assigned area, which will impose tremendous pressure on children who are accustomed to their schools, friends and environment.  This runs counter to the free choice of residence acknowledged in the Headquarters Agreement.  It is unquestionable that a dispute between the United Nations and the host country exists.  It is quite evident that this dispute cannot be settled through negotiation, he said, urging the Secretary-General to enforce section 21 of the Headquarters Agreement by referring the case to arbitration.  The other option is to request an advisory opinion from the International Court of Justice, based on section 30 of the Convention on the Privileges and Immunities of the United Nations, he said.

AMMAR AL ARSAN (Syria) welcomed the new recommendations contained in the Committee’s report to address the difficulties, obstacles and restrictions imposed by the host country on certain delegations.  He encouraged all Member States to implement the same.  There has been no such implementation for years, due to the insistence of the Government of the host country on imposing illegal restrictions on the representatives of some States and due to non‑invocation of the legal tools provided for in the Headquarters Agreement.  The primary problem does not lie here in New York, but rather in the politicized decisions made in Washington, D.C., aimed at punishing some permanent missions and their staff as a result of their nationality and political differences between the United States Government and other States.  The measures taken by that Government are unprecedented and no longer acceptable, as they now are impeding the work of the General Assembly and its main Committees by limiting the ability of all Member States to participate fully therein.  The primary and only party responsible for this impediment is the Government of the host country, which unjustly believes that hosting the United Nations is its prerogative and therefore confers the ability to impose restrictions on certain missions.  He stressed that the affected States are not seeking confrontation but are instead pursuing compliance with the Headquarters Agreement.

ALEXANDER S. PROSKURYAKOV (Russian Federation), noting an unprecedented crisis this year, said the abuse by the United States of its status as host country has disrupted the work of both the Sixth Committee and the First Committee (Disarmament and International Security) at the beginning of this session.  He noted that 18 members of the Russian delegation were not issued visas.  At the meeting of the Host Country Committee, the Legal Counsel for the United Nations clearly stated the Secretary-General’s position that all Member State delegates must receive visas for participation in United Nations events.  The Secretary‑General has personally discussed the matter with the Secretary of State of the United States, and the Chair of the Sixth Committee has also made efforts to resolve the problem.

However, “the results are nothing,” he pointed out, adding that not one of the members of the Russian delegation has received a visa.  Washington, D.C. has no grounds to block national delegations from activities under the United Nations auspices, he stressed, also drawing attention to the so-called 25-mile zone restriction.  The host country has also undertaken an illegal takeover of part of the premises of the Russian mission in Upper Brookville, Long Island.  Calling on the Secretary-General to intervene and ensure the immediate resolution of all these issues, he noted that the French version of the Host Country Committee’s report does not correspond to the text in English.

INDIRA GUARDIA GONZÁLEZ (Cuba), associating herself with the Non-Aligned Movement, said the host country is obliged to adopt all relevant measures to fulfil its international obligations.  Rejecting the arbitrary and selective use of the Headquarters Agreement to prevent or limit participation of some delegations in this organization, she said that the ongoing nature of violations became particularly grave recently with unprecedented dimensions.  That impacted the functioning of some missions and the work of the Organization.  Imposing restrictions on movement of diplomats is unfair, selective, politically motivated and contrary to obligations under the Headquarters Agreement, she stressed.  For years, the United States has ignored recommendations to lift restrictions on movement of some countries.  The number of States subject to such restrictions has increased, and the radius of movement has tightened, she said.  All of this reflects disrespect and open abuse of power by the United States, she said, calling that an “affront to multilateralism”.  Her delegation is prepared to work together to find a fair formula within the norms of international law, she said.

RISHY BUKOREE (Mauritius), associating himself with the Non‑Aligned Movement, paraphrased a Pink Floyd song, stating:  ”It doesn’t have to be like this.  All we need to do is make sure we keep talking.”  Commending all the security personnel assisting in the opening of the General Debate, including New York City police and detectives, he also observed that this year, diplomatic vehicles were not towed away during the security sweep of the United Nations garages.  He called for continued close collaboration between all stakeholders, especially the New York Police Department of Traffic which at times does not appear totally in sync with the rest.  He also reiterated the call to ensure recognition for tax exemption for diplomats; some business owners have rudely stated “everyone pays taxes here” while others have just lazily said that they do not know how to do it on their system.  Also calling for easier access to accommodation, he said that building owners should be apprised as to the need to be more welcoming towards diplomats and their families.  “New York City is no ordinary city,” he said, calling it the capital of the world.  In the near future, it might even be considered as “common heritage of humanity” he said, adding that it is important for everyone to work hand‑in‑hand to ensure that New York City remains the venue par excellence for diplomatic negotiations.

HENRY ALFREDO SUÁREZ MORENO (Venezuela), associating himself with the Non‑Aligned Movement, said the host country continues to be in breach of its obligations by continuing to deny visas and apply restrictions to the movements of accredited diplomats.  The guarantees enshrined in the Headquarters Agreement and other norms of international law have been shamefully flouted by the Government of the United States.  An increasing number of countries are affected by such circumstance, he said, adding that this stems from a disdain for international law.  On 28 October, his Government’s Ministry of Foreign Affairs sent to the United States consular section in Colombia a request for a diplomatic visa for a minister attending meetings at the United Nations.  It took until today for that visa to be issued, he noted.  Also spotlighting banking restrictions that have affected health insurance and other aspects of normal functioning for his mission, he called on the United Nations to require the United States to strictly comply with its obligations.

KIM IN RYONG (Democratic People’s Republic of Korea), associating himself with the Non-Aligned Movement, stated that the host country must fulfil its responsibility and obligations under the Headquarters Agreement and other international legal instruments.  Referencing a previous call for the United States to carry out a thorough investigation into a “provocative case” committed against a senior official of his country, he urged the United States to hunt down the suspect, carry out a stringent investigation into the background of the case, provide the results of this investigation and take measures to prevent a recurrence.  He also called on the Committee to ensure that the host country abides by the Headquarters Agreement and other relevant international legal instruments and to hold the United States accountable for the gravity of the aforementioned case and its consequences.  The Committee should also introduce measures to compel the host country to fulfil its obligations, rather than simply recommend it do so.

MOHAMMAD KURNIADI KOBA (Indonesia), associating himself with the Non-Aligned Movement, said he is very concerned with the non-issuance of entry visas and the travel restrictions — tied to the Agreement between the United Nations and the United States regarding the United Nations Headquarters.  It is very important to ensure implementation of the Vienna Convention on Diplomatic Relations and the Headquarters Agreement between the United Nations and the United States.  In article 47 of the Convention, the receiving State shall not discriminate between States in applying the present Convention’s provisions.  Section 11 of the Agreement also specifies that federal, state or local authorities of the host country shall not impede transit to or from the United Nations Headquarters district for representatives of Member States, United Nations officials or specialized agencies.  He also added his strong support for the Secretary‑General’s engagement through the Office of Legal Affairs in these matters.

JO-PHIE TANG (Singapore) said that she is concerned that in recent months the issuance of visas for diplomats attending United Nations meetings has become a political issue.  This issue could impact negatively on the work of the main Committees.  The host country and other countries involved should engage with each other with seriousness and seek a resolution in accordance with the Headquarters Agreement and the Charter of the United Nations.  She also underlined the importance of the active engagement of the Secretary‑General with the host country, as well as relevant Member States, regarding the implementation of the Headquarters Agreement.  The United Nations is a party to the Agreement, and the Secretary‑General, as its representative, plays a direct and central role in ensuring its effective implementation.

MARK A. SIMONOFF (United States) said that his mission, and in particular his colleagues in the host country section, strive to do everything they can to fulfil the obligations of their country under the Headquarters Agreement.  “We are well aware that, in the view of some of you, the United States has fallen short,” he acknowledged.  The report of the Host Country Committee contains in detail the position of the United States on all issues raised.  “We have listened, we have engaged, and we have taken your concerns seriously,” he said.

The intensive negotiations among the members of the Host Country Committee enabled a consensus outcome for the recommendations that appear at the end of the report, he continued.  He expressed hope that the Sixth Committee, following its prior practice, will fold those recommendations into its own resolution and then adopt by consensus.  He also thanked the Legal Counsel and other officials of the United Nations for their support of the Host Country Committee, adding that the Chair of that Committee ably handled the challenging issues of the past several months.  The United States is honoured to have the privilege of hosting the United Nations.  “We do not take our responsibilities lightly,” he stressed, adding his country has a special responsibility to each and every person in this room, and to each and every delegate in the halls of the United Nations.

Introduction of draft resolutions

The Committee then turned to three draft resolutions relating to the United Nations Commission on International Trade Law (UNCITRAL).

The first of these is on the Report of the Commission (document A/C.6/74/L.7), while the second draft resolution concerned the model legislative provisions on public‑private partnerships (document A/C.6/74/L.8).  The third text addressed the model law on enterprise group insolvency (document A/C.6/74/L.9).

Introducing the three texts, the representative of Austria noted that the first draft resolution is the annual omnibus resolution on the report of the Commission, which would stress again the importance of international trade law and recall the mandate and coordinating role of the Commission.  Highlighting some changes to this year’s resolution, she noted that operative paragraph 8 would note the future programme of the Commission in various areas of work and decisions regarding its priorities.

The second text would commend the Commission for finalizing and adopting the model provisions on public‑private partnerships and would recommend that all States give due consideration to them.  The third text would have the General Assembly express its appreciation to the Commission for finalizing and adopting the model law on enterprise group solvency with its guide to enactment and would recommend that States give favourable consideration to that.

The Committee then took up the draft resolution on consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm (document A/C.6/74/L.10).

Introducing that text, the representative of the Czech Republic noted that the text is based on the 2016 General Assembly resolution, with a few technical updates.  The draft will continue to commend the articles to Member States, she said.

For information media. Not an official record.